Pennsylvania Workers' Compensation Lawyer Blog

Generally speaking, employees in Pennsylvania are not entitled to workers’ compensation benefits when the employee is injured commuting to work (known as the “Coming and Going” rule).

There are four notable exceptions to this rule. They are that the injured worker: (1) has an employment agreement which includes commuting to and from work; (2) has no fixed place of employment; (3) is hurt while on a “special assignment” for employer; or, (4) is furthering the business of the employer.

The Supreme Court of Pennsylvania, in Peterson v. Workmen’s Compensation
Appeal Board (PRN Nursing Agency), decided in 1991, has already told us that an employee of a temporary agency has no fixed place of employment. In that case, the Supreme Court said, “[a] temporary employee, who is employed by an agency, never has a fixed place of work.” The Supreme Court then concluded, “when [an] agency employee travels to an assigned workplace, the employee is furthering the business of the agency. Therefore, . . . as a matter of law, [Peterson] had no fixed place of work . . . and her injury occurred while she was in furtherance of her employer’s business.”

The Peterson decision seems hard to reconcile with a recent decision rendered by the Commonwealth Court of Pennsylvania, Mackey v. Workers’ Compensation Appeal Board (Maxim Healthcare Services). In this case, Ms. Mackey, a home health aide, injured her ribs, knee and back in a motor vehicle accident on the way to a patient’s home. The Workers’ Compensation Judge (WCJ) denied the Claim Petition filed by Ms. Mackey, under the “Coming and Going” rule. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Despite the similarities between Ms. Mackey and the injured worker in Peterson, the Commonwealth Court of Pennsylvania affirmed the decision, finding Ms. Mackey not entitled to PA workers’ comp benefits. While Ms. Mackey did work for a temp agency, and was sent directly to a patient’s home from her own, the Court noted that Ms. Mackey worked for the same patient for a year and a half, and had no reason to believe the assignment would be ending in the near future. So, while a temp job typically would have no fixed place of employment, the facts in this case show Ms. Mackey DID have a fixed place of employment.

The Court also rejected Ms. Mackey’s argument that by going to the patient’s home in bad weather, there were “special” circumstances, and she was furthering the interests of the employer. As we discussed in a previous blog entry, the Court disposed of this argument by finding that having an employee show up at work is not a “special” circumstance, but rather a “universal” one, held by every employer.

As attorneys who represent injured workers in PA, we are troubled by this decision. A temp job, by its very nature is . . . you guessed it, temporary. As the Supreme Court of Pennsylvania held in Peterson, a temp job is a different creature, requiring different rules. The Mackey case sets a dangerous precedent. Now there appears to be an imaginary line in time when a temp employee, having no fixed place of employment, magically becomes an employee with a fixed place of employment. As lawyers, we ask for little more than certainty from the Courts; decisions like Mackey only serve to undermine such certainty, leading to additional litigation and further stretching of precious judicial resources.

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As discussed in previous blog entries, back in the old days (before the 1996 changes to the Pennsylvania Workers’ Compensation Act), if a workers’ comp insurance carrier wanted to cut a claimant’s worker’s compensation benefits, the carrier had to refer the person to an actual job lead. If the job lead did not result in employment, workers’ compensation benefits continued.

In 1996, the system was changed to one more like that used for Social Security Disability. Rather than sending the injured worker to an actual job opening, at an actual employer, a vocational specialist, hired by the insurance carrier, gathers theoretical information and compiles an Earning Power Assessment (EPA, also known as “Labor Market Survey,” (LMS)).

The workers’ comp insurance carrier then can take this EPA/LMS to a Workers’ Compensation Judge (WCJ), and ask that the injured worker’s compensation benefits be modified, based on the jobs shown to be “available” in the general geographic area in which the injured worker resides.

A recent decision by the Commonwealth Court of Pennsylvania, Marx v. Workers’ Compensation Appeal Board (United Parcel Service), addressed a few aspects in this process. In the this case, the WCJ selected the highest paying job and modified the injured worker‘s benefits. The Workers’ Compensation Appeal Board (WCAB) affirmed.

On appeal, the Commonwealth Court of Pennsylvania also affirmed. The Court rejected the argument that the WCJ had to take the average wage of all of the jobs in the EPA/LMS. Rather, the Court held the WCJ can select the wage of any job the WCJ wishes, here the highest wage, since the WCJ is the final “Finder of Fact.” The Court also rejected the argument that the EPA/LMS was defective because several of the “job leads” in the EPA/LMS were either inaccurate or not available. The Court found that since the job selected by WCJ was not one of the defective ones, there was no harm. Finally, the Court said that the WCJ was correct in not considering any injuries or conditions other than those formally accepted as related to the work injury.

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We have seen in recent decisions rendered by the Commonwealth Court of Pennsylvania a trend toward punishing injured workers in PA who take any type of disability or retirement package, almost, seemingly, without regard for the reasons.

In fact, earlier this month we posted a blog entry regarding Duferco Farrell Corp. v. Workers’ Compensation Appeal Board (Zuhosky), where the Court followed this very trend. So, the decision rendered by the Court recently in Polis v. Workers’ Compensation Appeal Board (Verizon Pennsylvania, Inc.), was received as a pleasant surprise.

Here, Mr. Polis had injured his knee (and had surgery for the knee). Eventually, Mr. Polis went back to work, at a light duty job. After some period of time, the employer discontinued the light duty work, leaving Mr. Polis without a position within his physical restrictions. As we commonly see in these situations, Mr. Polis investigated what options were available to put food on his family’s table.

In addition to applying for unemployment compensation benefits, Mr. Polis also applied for, and received, an Enhanced Income Security Plan (EISP) [a form of severance package] under the collective bargaining agreement. The EISP form had checked off “retirement” and an exit interview conducted by the employer had listed the same term. While Mr. Polis testified he had looked for employment on the internet, he did not actually apply for any positions because Verizon Pennsylvania, Inc. was the only company who would employ someone doing that type of work.

Finding that Claimant had not “retired” and thus had not “voluntarily withdrawn from the labor market,” the Workers’ Compensation Judge (WCJ) ordered workers’ comp benefits reinstated (after taking credit for unemployment compensation benefits and the EISP monies). On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.

Employer argued to the Commonwealth Court of Pennsylvania that Mr. Polis had indeed “retired,” triggering the shift of burdens. As such, since Mr. Polis was not disabled from all gainful employment, and had not conducted what the Court has previously found to be an actual job search (see previous blog entry on the Hensal case), the reinstatement must be denied.

In an unexpected turn, the Court rejected Employer’s appeal and affirmed the WCJ and WCAB. The Court said that Hensal did not apply because Mr. Polis was forced out of his job, did not take a retirement or disability pension (the EISP was solely due to the loss of the job, the Court noted) and never showed an intention to retire (the WCJ found that Employer completed the form stating “retirement,” not Mr. Polis). Since Mr. Polis did not “retire,” and “voluntarily withdraw from the labor market,” there was no shift of the burden of proof, and no requirement that Mr. Polis prove he was actually looking for work. Interestingly, the Duferco case was not even mentioned by the Court.

As you can see, workers’ compensation in PA is one of the more active areas addressed by the appellate courts in Pennsylvania. This is why our firm limits its practice to just representing injured workers in their PA workers’ comp cases. By limiting our practice to one area of law, we are able to stay in touch with legal and political developments impacting our clients. We offer free consultations, and encourage all injured workers to have experienced legal representation. Feel free to call or e-mail our offices for more information, or to schedule a consultation.

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As discussed in previous blog entries, for several years now, the Courts in PA have caused decisions by Pennsylvania’s injured workers to have drastic consequences beyond what an injured worker could reasonably expect.

Because of the decision in Pennsylvania State University v. Workers’ Compensation Appeal Board (Hensal), rendered by the Commonwealth Court of Pennsylvania in 2008, the simple act of filing for a pension can easily lead to a loss of workers’ comp benefits for an injured worker.

Well, don’t look now, but Commonwealth Court has struck again. Now, an injured worker who testified credibly that he is NOT retired, that he had NOT filed for a retirement pension from his employer (even though one was available), that he would go back to work if a job was available within his physical restrictions and that he filed for Social Security Retirement benefits only after the workers’ comp insurance carrier refused to reinstate his benefits, has been found by the Court to have voluntarily removed himself from the labor market, ending his entitlement to PA workers’ compensation indemnity (wage loss) benefits.

In this decision, Duferco Farrell Corp. v. Workers’ Compensation Appeal Board (Zuhosky), the injured worker suffered an injury to his knee in March, 2003. He eventually went back to work, at a modified duty job, until January 27, 2007, when he stopped working due to a worsening of his condition (and had a total knee replacement performed on January 31, 2007).

The workers’ compensation insurance carrier, in their infinite wisdom, denied a request to reinstate workers’ comp benefits. Having no other source of income at that point, and being totally disabled, on the advice of his attorney, Claimant applied for Social Security Retirement (SSR) benefits. Claimant also filed a Petition to Reinstate his workers’ comp benefits, as of January 27, 2007, when he again became totally disabled by the work injury.

In litigating the Petition for Reinstatement, Claimant presented evidence from not only his own treating doctor, but also from the Independent Medical Examiner retained by the workers’ comp insurance carrier. Both doctors agreed the work injury aggravated a pre-existing condition in the knee, resulting in the need for the total knee replacement. The workers’ compensation insurance company presented no evidence.

The Workers’ Compensation Judge (WCJ) granted the Petition for Reinstatement, and also awarded unreasonable contest attorney fees against the insurance carrier. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed, agreeing with the WCJ that the workers’ comp insurance carrier failed to prove the injured worker voluntarily removed himself from the labor market, and that no reasonable contest was shown. Logic and justice prevailed . . . for awhile.

Upon further appeal, the Commonwealth Court reversed. The scope of appeal essentially is whether the WCJ, and/or the WCAB, committed an error of law (The WCJ is the ultimate Finder of Fact, and such findings, if supported by sufficient evidence, should not be disturbed upon appeal). Regardless, the Court found that Mr. Zuhosky voluntarily withdrew from the labor market, so the granting of the Reinstatement Petition was in error.

The Court based its decision on the fact Claimant testified that he would “like to retire” (Who wouldn’t?). Claimant did NOT testify that he has retired. Mr. Zuhosky did file for SSR benefits, and did take a pension from his union (but not his employer). The Court found that the actions of Mr. Zuhosky triggered the switch of burdens of proof, as noted in the Hensal case. To win, then, Mr. Zuhosky had to demonstrate that he was actively seeking employment or that he was disabled from all employment by his injury. Since he failed to prove either, the Court found the Petition for Reinstatement could not be granted. Having conducted a seminar on this very issue, I can safely say this is a difficult standard to meet.

A strong dissent, authored by Senior Judge Friedman, was written both logically and clearly, observing that SSR was only taken after reinstatement was refused, that there was no evidence when the union pension was taken, that Mr. Zuhosky did not take a pension from his employer (and that he testified credibly that he would return to work if possible), and that Mr. Zuhosky actually did try to go back to work briefly after the surgery. Based on all of this, Judge Friedman felt the “voluntary” withdrawal from the labor market was anything but “voluntary.”

In my view, the opinion of Judge Friedman, while not the majority, certainly reflects the truth and reality of the world in today’s economy. The majority’s view would allow the injured worker to choose between starving his or her family or having workers’ compensation benefits. The law in Pennsylvania was never intended to present an injured worker with such a cruel choice.

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This being a free Country, a workers’ compensation insurance company in PA cannot “force” an injured worker to get any medical treatment. However, the Pennsylvania Workers’ Compensation Act permits the suspension of workers’ comp benefits if an injured worker refuses “reasonable” medical treatment (Known as a “Forfeiture” Petition). Often in those cases, the issue is whether the treatment at issue (anything from carpal tunnel release, to lumbar fusion, to total knee replacement, to epidural steroid injections) is actually “reasonable” in any particular case.

An interesting aspect of this issue was recently examined by the Commonwealth Court of Pennsylvania in Bereznicki v. Workers’ Compensation Appeal Board (Eat ‘N Park Hospitality Group). In that case, the question was whether the proposed treatment had to actually be intended to return the injured worker to gainful employment. In a decision surprising to many, the Court held that the treatment did NOT have to be designed to return the injured worker to gainful employment to lead to a suspension of benefits.

The concept of a “Forfeiture Petition” makes sense; it is designed to keep an injured worker from refusing treatment which would put the injured worker back on the job (in reality, however, I doubt many folks would truly refuse treatment that would make them better, but the insurance industry seems to disagree with me). But, to me, that is the point – the fact the injured worker could return to work.

The treatment at issue in Bereznicki was a detox program for prescription medications. There was no evidence the detox program would enable the injured worker to become employable (which makes sense, since the program would provide no treatment for the disabling injury itself).

In holding that the Workers’ Compensation Judge correctly granted the Forfeiture Petition and suspended workers’ comp benefits, the Court stated, “Although such a program would not return Claimant to her pre-injury job, her refusal of such treatment certainly increases her incapacity.”

Personally, I find that to be an odd standard to use, in what amounts to forcing a person into medical treatment. If the treatment is designed simply to cure a problem and improve function and quality of life, why is that the role of the workers’ comp insurance carrier? Should that not be the decision of the injured worker, and his or her treating doctors? Once a person is “totally” disabled, I am not aware of any math that would allow the person to become more disabled.

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Under the Pennsylvania Workers’ Compensation Act, an insurance carrier cannot just stop, or even change, payments of workers’ comp benefits. Any change made by the workers’ compensation insurance carrier in PA, without permission of the injured worker, or a Workers’ Compensation Judge (WCJ), may be met with an assessment of penalties. This leads us into an examination of how an insurance carrier can try to reduce such benefits.

When a workers’ comp insurance carrier receives evidence that the medical condition of an injured worker has changed, the carrier must file a Notice of Ability to Return to Work. The law tells us that this document must be filed before the workers’ compensation carrier can file a Petition to Modify or Suspend (workers’ comp benefits), based on some wage-earning capacity.

In the case of an injured worker actually going back to work, the insurance carrier has a period of time to file a Notification of Modification or Suspension. This document sets forth the allegations regarding the wages now being earned by the injured worker. If this document is not challenged in court by the injured worker, the effect is the same as if the injured worker agreed to the terms recited within the document (as if the injured worker had agreed to those terms in a “Supplemental Agreement.”). If the workers’ compensation insurance carrier does not file the Notification of Modification or Suspension in a timely fashion, then the insurance carrier must file a Modification, or Suspension, Petition and litigate the matter before a WCJ.

A question which was unclear was whether a Notice of Ability to Return to Work had to be filed in the case when the injured worker actually does go back to work. Recently, the Commonwealth Court of Pennsylvania decided this issue in Carolyn Ashman v. Workers’ Compensation Appeal Board (Help Mates, Inc.).

The Court held, simply, that the Notice of Ability to Return to Work is not necessary if the injured worker has actually gone back to work. The Court reasoned that the purpose of this Notice is to make sure the injured worker is aware he or she has been released to some type of work; if that person has actually gone back to work, obviously the person was aware of such release. The Court also added that no new Notice is required every time changes are made to the injured worker’s capabilities.

So, for now, it appears the issuance of a Notice of Ability to Return to Work must be issued in any case where the injured worker has not actually returned to employment. If no Notice was issued, then a subsequent Petition to Modify or Suspend (based on assumed earnings) should fail.

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Typically, in Pennsylvania, a workers’ compensation claim has two important time constraints – a period within which the injured worker must provide notice of the work injury to his or her employer (within 120 days), and a period within which a Claim Petition must be filed with the Bureau of Workers Compensation (within three years). Though this is the rule, there are, of course, exceptions.

In Lancaster General Hospital v. Workers’ Compensation Appeal Board (Weber-Brown), the Commonwealth Court of PA was faced with a situation where the eye of an injured worker was exposed to herpes simplex virus around 1980. The injured worker gave notice to her employer at that time, but the claim was never formally accepted. In 1985, the injured worker left that job. Through the years, the eye had occasional episodes of infection.

In 2007, the treatments for an infection failed to work, and the injured worker underwent a cornea transplant. At that point, the injured worker was legally blind in that eye, and there was a loss of use of the eye under the Pennsylvania Workers’ Compensation Act (called a “Specific Loss”).

A Claim Petition was filed and benefits were awarded by a Workers’ Compensation Judge (WCJ). The Workers’ Compensation Appeal Board (WCAB) affirmed the decision. The WCJ found that the initial exposure was in 1980, but the actual date of injury was May 16, 2007 (the date the doctor told the injured worker that the damage to the eye required the cornea transplant).

The Commonwealth Court also affirmed. The three year statute of limitations was not lost, because the date of exposure was irrelevant. It is the date of INJURY, said the Court, that matters. Since the eye was not “lost” until May 16, 2007, that was the date the “injury” occurred.

Another interesting aspect of this case is the wage the injured worker was earning at the time of the injury [upon which workers’ comp benefits are based] (known as the “Average Weekly Wage” or AWW). The WCJ used Claimant earnings in 2007 (for her new employer). As a practical matter, the injured worker had not worked for the time-of-injury employer since 1985. The workers’ compensation insurance carrier had argued the AWW should either be what the injured worker earned in 1980 (when she was exposed) or 0, since she had no earnings from that employer in 2007. The Court again denied the arguments of the insurance carrier, noting that the date of INJURY was May 16, 2007, so the AWW was properly based on her actual earnings at that time.

As you can see, there are many complicated issues in the world of PA workers’ comp. That is why our firm limits its practice to just representing injured workers in Pennsylvania workers’ compensation cases. You can learn more about the Pennsylvania Workers’ Compensation Act by visiting the FAQ page of our website.

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When a violation of the Pennsylvania Workers’ Compensation Act takes place, the proper avenue of relief is to file a Petition for Penalties. This Petition allows a Workers’ Compensation Judge (WCJ) to assess a penalty of up to 50% of the benefits at issue. Typically, this is filed by an injured worker against the workers’ comp insurance carrier. Common violations include a delayed payment of wage loss benefits, or a refusal to pay for medical treatment related to the work injury.

Until recently, there was no clear answer as to whether a Petition for Penalties could be filed BY a workers’ compensation insurance carrier AGAINST an injured worker. The Commonwealth Court of Pennsylvania has now answered this question in Yespelkis v. Workers’ Compensation Appeal Board (Pulmonology Associates Inc.). The answer is simply, yes, a Penalty Petition can be filed against a claimant in a workers’ comp case.

However, importantly, while a WCJ can assess a penalty against a workers’ compensation insurance carrier of up to 50% of the benefits at issue, the WCJ is limited to assessing a penalty of a forfeiture of interest against an injured worker. This, the Court said, is consistent with the language of the PA Workers’ Compensation Act.

Interestingly, the Court reversed the decision of the Workers’ Compensation Appeal Board (WCAB) and remanded the case to the WCJ, to determine whether unreasonable contest attorney fees should be assessed against the workers’ comp insurance carrier. Though filing a Petition for Penalties against a claimant is not unreasonable as a matter of law, as with any petition filed by the carrier, if there was not a sufficient basis upon which to file the petition, counsel fees are to be assessed.

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The Pennsylvania Workers’ Compensation Act allows a workers’ comp insurance carrier to obtain an “Independent Medical Examination” (IME) [Which, of course, is usually anything but “Independent”] at “reasonable” intervals. If an injured worker refuses to attend an ordered IME, a Workers’ Compensation Judge (WCJ) can suspend the injured worker’s benefits under Section 314(a). This was usually interpreted to mean “indemnity” or wage loss benefits, as opposed to medical benefits. Whether medical benefits could be suspended was an open question.

In Giant Eagle v. Workers’ Compensation Appeal Board (Givner), decided by the Commonwealth Court of Pennsylvania recently, this issue was addressed. The workers’ compensation insurance carrier asked the WCJ to suspend compensation benefits of an injured worker who refused to attend a court-ordered IME. The WCJ issued a decision, granting the request of the insurance carrier, that “compensation benefits” be suspended until the injured worker attends the IME. The Workers’ Compensation Appeal Board (WCAB) agreed and affirmed the decision.

On appeal, the workers’ comp insurance carrier asked that medical benefits be suspended along with the indemnity benefits. The insurance carrier argued that the injured worker should be deprived of all compensation for failing to attend the ordered IME. This position was rejected by the Court, which held that medical benefits are separate from indemnity benefits, and are not included in the term “compensation.” The Court found that, in this case, medical benefits are not suspended because the decision of the WCJ cited only “compensation.”

Note though, in the “dicta” (a finding of a court which is not relevant to the “holding” of a case), the Court states that the ability to suspend both indemnity benefits AND medical benefits is within the “sound discretion of the WCJ” and will be upheld unless abuse of discretion is shown. This, the Court said, allows the WCJ to uphold the purpose of the PA Workers’ Compensation Act, which could be frustrated by an injured worker, with benefits already suspended, continuing to receive medical benefits while evading a court-ordered IME.

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Ordinarily, when an employee is commuting to, or from, work in Pennsylvania, he or she is not in the course of employment. This is known in the PA workers’ comp community as “The Going and Coming Rule.” Thus, if the employee is injured while commuting, usually the injured worker is not entitled to PA workers’ compensation benefits. Like every rule, however, there are exceptions.

Recently, in Leisure Line v. Workers’ Compensation Appeal Board (Walker), the Commonwealth Court of Pennsylvania addressed some of these exceptions. While working as a bus driver for Leisure Line, Mr. Walker commuted from his Delaware home to the bus depot in Coatesville, PA. From the depot, Mr. Walker would drive the bus to and from Atlantic City, NJ. On his way from his home to Coatesville one day, Mr. Walker was injured in a motor vehicle accident.

In asserting that his commute was an exception to the usual rule, and that he was eligible for benefits under the PA Workers’ Compensation Act, Claimant had two main assertions – that he was paid for his travel to Coatesville; and, that his willingness to accept the “Coatesville Run,” an unpopular job assignment, was a “special circumstance” which “furthered his employer’s business.”

The Workers’ Compensation Judge (WCJ) agreed that the collective bargaining agreement provided travel expense to Mr. Walker for his commute to Pennsylvania, and that, therefore, Mr. Walker was in the scope and course of his employment at the time of the injury. As such, the WCJ granted the Claim Petition and awarded workers’ comp benefits. The Workers’ Compensation Appeal Board (WCAB) affirmed the decision of the WCJ, though the WCAB said the reason was because Mr. Walker benefited his employer by accepting the unpopular run, not because of the travel expenses.

Unfortunately for Mr. Walker, the Commonwealth Court of PA disagreed with the reasoning of both the WCJ and the WCAB, and reversed, denying the Claim Petition. As to the travel expenses for getting to the depot in PA, the Court held that since the travel reimbursement was a flat rate (for all drivers), and was not dependent on the time or distance in the commute, and the employer did not control the “means of transportation,” the exception to “The Going and Coming Rule” was not met.

Further, the Court held that accepting an unpopular job location or assignment does not rise to the level of “special circumstances” required for this exception to the rule. The Court felt that having an employee show up at work (even for an unattractive job or at an unappealing job location) is a “universal” circumstance, expected by every employer in Pennsylvania, as opposed to a “special” one.

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When an injured worker in Pennsylvania is physically unable to perform his or her time-of-injury job, due to a work injury, the burden falls to the employer to prove the existence of a job that is “available” to the injured worker. For a job to be “available,” it must be within the injured worker’s physical capabilities, as well as be suitable with regard to other “relevant considerations” (which may include vocational suitability, job location, and other factors).

A previous decision of the Commonwealth Court of Pennsylvania had told us that a modified job being offered must specifically state the duties which would be expected. The Supreme Court had already told us that a job which is for only a finite period can only lead to a modification or suspension for that period the job is available.

Recently, however, the Commonwealth Court of Pennsylvania decided Presby Homes and Services v. Workers’ Compensation Appeal Board (Quiah), which calls both of these prior decisions into question.

In Quiah, the injured worker was released to light duty work. The employer offered her a light duty job, and in the job offer letter, specifically listed the duties which would be required. The key, though, is that the job offer letter also stated that this position is merely an at-will job, and that the “job duties, tasks, work hours and work requirements may be changed at any time.”

Relying on the existing law, the Workers’ Compensation Judge (WCJ) found the employer witness not credible, because the job carried these two limitations. The WCJ found that the job was not available to the injured worker. The Workers’ Compensation Appeal Board (WCAB) agreed.

The Commonwealth Court of PA reversed the decision of the WCJ, and found the job available as a matter of law. First, the Court found that the WCJ erred in finding the employer witness not credible; placing these limitations on the job offer, the Court said, had no impact on credibility and the WCJ erred in concluding otherwise.

As to the statement that the job was at-will, the Court observed that most jobs in PA are at-will (short of a contract employee or a union), and therefore, this statement means nothing. This can easily be distinguished from the situation where a job is only offered for a finite period of time. Candidly, this conclusion is reasonable, and consistent with precedent.

More troubling for us, as attorneys who represent injured workers in PA, is the Court’s dismissal of the second caveat, that job duties can be changed at any time. The Court flippantly noted that if new duties are inconsistent with the injured worker’s capabilities, the injured worker can simply file a Petition for Reinstatement. This seems a rather naïve view from such a learned body. While the injured worker can discuss the initial job offer letter with his or her lawyer, and doctor, and consider options without duress or pressure, the injured worker has no such luxury when job duties are changed at any moment during a work day. This seems to be a recipe for disaster for an employer to intimidate its employee into doing more than his or her condition would safely allow. Since the Courts are fond of noting that the Pennsylvania Workers’ Compensation Act is remedial legislation, intended to be liberally construed in favor of the injured worker, such a draconian ruling from this Court is quite disappointing.

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In PA, an injured employee is entitled to workers’ compensation benefits only when the injury takes place while the employee is in the scope and course of his or her employment. Often, this is something obvious, as when the employee is actually injured while on the employer’s premises, performing the usual and customary duties of his or her job. There are times, though, when the injured worker is either not on the employer’s premises, or not engaged in the job duties, at the time of the accident. These situations can be dependent on the precise facts in each case.

Recently, the Commonwealth Court of Pennsylvania dealt with this issue in Graves v. Workers’ Compensation Appeal Board (Philadelphia Housing Authority), decided by the Court on October 23, 2009. In this case, the Claimant, Mr. Graves, was a Philadelphia Housing Authority patrol officer. He was shot while off-duty, confronting an armed man outside a tavern in South Philadelphia. The claim was denied by the workers’ compensation insurance carrier, who said Claimant was not in the scope and course of his employment at the time of the shooting.

The Workers’ Compensation Judge (WCJ) found the employer’s witness, the Assistant Police Chief of the Philadelphia Housing Authority, more credible than Claimant, and denied the Claim Petition. The employer witness had completed a report of his investigation of the incident and testified from this report. Specifically, the employer witness testified that Claimant failed to follow proper police procedure, and was not acting as a police officer when he was shot. Claimant had objected to the use of this report, on the basis of hearsay (an out-of-court statement, used to prove the truth of the matter asserted).

In its decision, the Court found that the testimony of the employer witness was not hearsay. The witness was not testifying from the report (which was arguably hearsay), but instead was giving his opinions based on the testimony of Claimant as to what took place. As a result, the Court affirmed the decision of the WCJ, and the WCAB, in denying the Claim Petition.

Actually, to my review, and that of the dissent, authored by Judge McCloskey, whether the testimony of the employer witness was hearsay or not does not resolve the issue. The dissent pointed out that by making this case turn on whether Claimant followed “appropriate police response” injects a negligence aspect to a workers’ compensation case. Since the PA workers’ comp system is specifically designed to be a no-fault scheme, raising the issue of whether proper procedure was followed sets a dangerous precedent. The dissent suggests, and I agree, that the matter should have been remanded to the WCJ to consider “the factual question of whether claimant, in acting on the belief that he was authorized to make arrests while off-duty, took action with the intent to accomplish an arrest of the person who shot him.”

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In a case that has been working its way through the Pennsylvania Workers’ Compensation system for some time now, the Supreme Court has accepted appeal in the matter of Diehl v. Workers’ Compensation Appeal Board (WCAB).

As was discussed in a previous blog entry, the Commonwealth Court of Pennsylvania concluded that a workers’ compensation insurance carrier need not prove job availability whether or not the IRE request is made within 60 days of the expiration of 104 weeks of total disability. Instead, if that time period is missed, the workers’ comp insurance company merely has to prove the Impairment Rating Evaluation resulted in an impairment rating of less than 50%.

The Supreme Court of PA has accepted appeal to determine whether evidence of job availability or earning power is required to change disability status from total to partial as a result of an IRE.

As always, we will keep you informed on further developments in this important area.

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In year’s past, before 1996, when a workers’ compensation insurance carrier wanted to reduce an injured worker’s benefits in PA, the insurance carrier had to refer the injured worker to jobs, which then had to be open and available to the injured worker. This process was set forth not by the Pennsylvania legislature, but by the Supreme Court of PA in Kachinski v. Workers’ Compensation Appeal Board, decided in 1981.

This process changed in 1996, when the PA legislature amended the Pennsylvania Workers’ Compensation Act. No longer does a workers’ comp insurance company have to actually refer an injured worker to a then-open job. Instead, the PA legislature opted for a system more like that used by the Social Security Administration in Social Security Disability cases. All that is required to be proven to modify workers’ compensation benefits is that suitable employment is generally available to the injured worker in the injured worker’s usual employment area.

This involves the use of “Labor Market Surveys (LMS),” also known as “Earning Power Assessments (EPA).” The injured worker is not referred to any specific job at all. The vocational expert retained by the workers’ comp insurance company just gathers data of jobs generally available in the geographic area of the injured worker. The premise is that if the injured worker wanted to look for work, these are the types of jobs the injured worker could find.

Recently, the Supreme Court of Pennsylvania addressed this issue again, in Riddle v. Workers’ Compensation Appeal Board (WCAB). More specifically, the Court addressed what geographic area must be used for the LMS or the EPA, if the injured worker resides out of the State of Pennsylvania.

In the Riddle case, the injured worker lived in West Virginia, but listed an Ohio address on his driver’s license. Mr. Riddle actually worked in Pittsburgh, which is where the injury took place. The vocational expert created a LMS/EPA focusing on where the injured worker was living, rather than where the injury took place. No jobs listed in the LMS/EPA were located in Pittsburgh.

The Workers Compensation Judge (WCJ) granted the workers’ comp insurance carrier’s Petition to Modify Benefits, based on the LMS/EPA. This was affirmed by both the WCAB and the Commonwealth Court of Pennsylvania. However, on appeal, the decision was reversed by the Supreme Court of PA.

Using the actual language of the Pennsylvania Workers’ Compensation Act, the Court found that if an injured worker resides out of PA, “the usual employment area where the injury occurred shall apply.” Since the injury occurred in Pittsburgh, Pennsylvania, the LMS/EPA, which focused on West Virginia, was insufficient, as a matter of law, to justify a modification of benefits. As such, the decision granting the Modification Petition was reversed.

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When a worker is injured in Pennsylvania, he or she is generally entitled to workers’ compensation benefits when wages are lost due to the injury. Whether this loss in wages is actually due to the injury is a point often litigated. The issue can be particularly difficult when the injured worker is terminated from his or her job, allegedly for reasons unrelated to the work injury.

This issue comes up on occasion when an injured worker is receiving total disability benefits, and the workers’ compensation insurance carrier wants to reduce or stop those benefits. The continued receipt of total disability benefits may hinge on whether the injured worker was terminated for reasons unrelated to the work injury. The case law had suggested that if an injured employee is terminated after a work injury, for actions that took place before the work injury, the termination is considered related to the work injury.

The Commonwealth Court of Pennsylvania recently addressed this issue in Harvey v. Workers’ Compensation Appeal Board (WCAB). In that case, Ms. Harvey, a registered nurse, suffered a fracture in her neck, requiring a cervical fusion, in a work-related motor vehicle accident on July 4, 2001, and began to receive total disability benefits.

While investigating the accident, police allegedly discovered narcotic medications in Ms. Harvey’s car. When advised of the findings, the employer, Monongahela Valley Hospital located in Western Pennsylvania, investigated how Ms. Harvey had obtained the narcotics. The hospital concluded that Ms. Harvey had been signing out narcotic medications, but not delivering the drugs to patients. As a result of her violation of hospital policy, Ms. Harvey was terminated.

When Ms. Harvey was released to light duty work, the workers’ comp insurance carrier filed a Petition for Modification, to reduce the workers’ compensation benefits. The hospital presented testimony that jobs would be available within the physical restrictions of Ms. Harvey, but that she could not accept the jobs because she had been terminated for reasons unrelated to her work injury. Ms. Harvey contended that, since she was terminated after the injury for actions which took place before the work injury, the termination must be considered related to the work injury. As such, if the jobs were not being offered to her, then the employer was not able to demonstrate that work was actually “available” to her.

The Court found for the workers’ compensation insurance company, and granted the Petition for Modification. While the actions at issue took place before the work injury, the employer was not aware of the misconduct until after the work injury. A clear distinction was drawn by the Court when misconduct occurs before the work injury – if the employer knew of the misconduct before the injury, but elects to terminate the injured worker after the work injury, the termination is considered related to the injury. If, however, the employer did not know of the actions until after the work injury, as with Ms. Harvey’s case, then the termination is considered unrelated to the work injury.

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While there is no limit to the period of time an injured worker in Pennsylvania can receive workers’ compensation benefits for total disability, the same is not true for partial disability. In PA, an injured worker can receive a maximum of 500 weeks of partial disability. After that time, even if a loss in earnings remains, as a result of the work injury, the workers’ comp insurance carrier is relieved of payment of the workers’ compensation benefits for partial disability.

Today, the Commonwealth Court of Pennsylvania issued a decision in the matter of Reutzel v. Workers’ Compensation Appeal Board (WCAB), addressing whether this 500 week period of partial disability benefits can be “stacked” if there is more than one injury.

In September, 1996, Ms. Reutzel injured her right shoulder at work. As a result of this injury, Claimant was limited to working reduced hours and began to lose wages. Workers’ compensation benefits for partial disability began. In May, 1997, Ms. Reutzel suffered another injury at work, this time to her lumbar spine. Again, she quickly went back to work, although she remained at the same restrictions as before. Partial disability benefits continued, as they had before the 1997 injury.

The 500 week period of partial disability benefits ended in June, 2006, and the workers’ comp insurance company stopped the payments. A Petition for Reinstatement was filed by Ms. Reutzel. According to Ms. Reutzel, she only used the 500 week period from the 1996 injury; she contended that she still had another 500 week period for the 1997 injury.

Unfortunately for Ms. Reutzel, the Court did not agree. Citing to the language of the Pennsylvania Workers’ Compensation Act, and later cases which interpreted the section of the Act at issue, the Court held that an injured worker in Pennsylvania only has a single 500-week period of partial disability with an injury, and that this period begins to run on the date total disability benefits are initially suspended. In other words, the start of the 500 week period for the 1997 injury was not delayed or stopped by the presence of the 500 week period for the 1996 injury. The Court noted that there was no change in the disability status as a result of this latter work injury. The 500 week periods of partial disability run concurrently, rather than consecutively, when there is more than a single work injury involved.

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In PA workers’ compensation, there is no limit to how long an injured worker can receive total disability benefits. Once an injured worker receives total disability benefits for a period of 104 weeks, however, the workers’ comp insurance company can request the injured worker attend an Impairment Rating Evaluation (IRE). Similar to an Independent Medical Examination (IME, more practically known as a Defense Medical Examination, DME), a physician conducting an IRE will examine the injured worker.

Based on that examination, the IRE physician will calculate the whole body impairment rating. The rating is to include only the effects of the work injury. If the whole body impairment rating is found to be less than 50%, then benefits are changed from total to partial (though the amount of benefits received should not change). We have discussed the IRE process in previous blog entries.

Today, the Commonwealth Court of Pennsylvania issued a decision in the matter of Johnson v. WCAB (Workers’ Compensation Appeal Board). This decision deals with what can be challenged in an impairment rating, once the status is changed from total to partial.

The Claimant in Johnson received a Notice of Change of Workers’ Compensation Disability Status when an IRE showed a 15% whole body impairment rating. She did not file an appeal to this Notice. About a year later, Claimant filed a Petition to Review alleging the IRE was faulty (because the IRE physician was not qualified to perform an IRE on her type of injury).

According to the Court, since Claimant failed to file an appeal of the Notice of Change of Workers’ Compensation Disability Status, Claimant could not challenge the validity of the IRE itself, and her Petition to Review should have been dismissed. Indeed, the Court found that a prerequisite to filing a Petition to Review in such a case is that the injured worker have a determination from a doctor that there is an impairment rating equal to, or greater than, 50 percent. In other words, all that an injured worker can challenge at that time is whether the total disability has recurred.

Once again, we are reminded of the permanent effects an injured worker in PA can suffer if time periods under the Pennsylvania Workers’ Compensation Act are not followed. Sometimes, as in this case, not even an experienced PA workers’ comp attorney can fix what has happened. It is for reasons such as this that we urge every injured worker in Pennsylvania to have the benefit of representation by a knowledgeable PA workers comp attorney.

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Who better than the injured worker to know the pain that person is feeling? At this point in medical science, we do not have a “pain meter.” Doctors can examine a person, and obtain diagnostic testing, such as x-ray, MRI and CT scan, but, ultimately, doctors can only tell us whether they can find an objective basis for a person’s pain. No doctor could credibly state whether a person has pain.

This becomes an issue in PA workers’ compensation cases. A Workers’ Compensation Judge (WCJ) must decide whether to believe an injured worker, when he or she testifies regarding the symptoms they suffer. At least, that is how a reasonable person could assume the system works.

In reality, in PA, according to a recent decision by the Commonwealth Court of Pennsylvania, the testimony of the injured worker, without matching testimony from a physician, cannot defeat a petition filed by the workers’ compensation insurance carrier to modify or suspend the injured claimant’s workers’ compensation benefits. In World Kitchen, Inc. v. WCAB (Workers’ Compensation Appeal Board), the Independent Medical Examiner (IME, otherwise known as Defense Medical Examiner (DME)), released the injured worker to full time work.

The injured worker tried the job in good faith, but she was not able to work full time due to continuing back pain. The WCJ decided that the workers’ compensation insurance carrier had to pay workers’ compensation benefits based on the actual wages earned by the injured worker. The Commonwealth Court of PA reversed the WCJ, finding that the Petition to Modify should have been granted. The Court reasoned that the testimony of claimant, that she had to leave work on occasion due to ongoing back pain, was not sufficient by itself to defeat the Petition. Since the claimant presented no medical evidence (deposition of a doctor) of her own, she must lose.

As the dissent in the case pointed out, the testimony of an injured worker by itself IS enough to reinstate workers’ comp benefits in PA, so it is silly to say such testimony is not enough to keep benefits going.

This case highlights the dangers of an injured worker litigating a workers’ compensation case in Pennsylvania without the representation of an experienced PA workers’ comp attorney. Not only did this injured worker not know a medical deposition was necessary to win the case, in all likelihood, the injured worker lacked the funds to pay for a medical deposition. Many workers’ compensation firms, including Brilliant & Neiman, LLC, never charge their clients for the costs of litigating a case (which can easily run more than $5,000).

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Injured workers in Pennsylvania are entitled to payment of wage loss benefits, as well as payment for medical treatment related to the work injury. The term “medical treatment” in PA is defined broadly. It includes obvious items, such as an MRI or x-ray, medications, doctor visits and surgery, but it also can include items you might not immediately consider, such as prosthetic devices and home modifications.

Regarding home modifications, Pennsylvania Courts have previously held that a workers’ comp insurance carrier only has to modify an injured worker’s home one time. While the workers’ compensation insurance company is required to replace medical equipment that wears out, such as wheelchairs, braces and orthotics, the law was unclear whether revisions to a home modification had to be paid for by the workers’ comp insurance carrier.

Recently, the Commonwealth Court of Pennsylvania decided the case of Equitable Resources v. WCAB (Workers’ Compensation Appeal Board). In that case, the injured worker was paralyzed in the work injury. The workers’ compensation insurance carrier paid for modifications to the home. Unfortunately, some time later, it was discovered the modifications were done poorly, and considerable expense was required to fix the mistakes made by the original contractor (who, by the way, was selected by the employer). The workers’ comp insurance carrier refused to pay for the subsequent repairs, believing they had paid for the initial home modification, and that was the extent of their responsibility.

The Court found repair of the home modifications closer to the replacement of a worn-out wheelchair than additional modifications to a home. As such, the Court directed the workers’ compensation insurance carrier to make payment. This seems to be a just result, appropriately reflecting that the PA Workers’ Compensation Act is, “remedial in nature and is intended to benefit workers, and therefore, the Act must be liberally construed in order to effectuate its humanitarian objectives.”

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As we discussed in a previous blog entry, the Supreme Court of Pennsylvania accepted review of the Cinram Manufacturing v. Workers’ Compensation Appeal Board (Hill) case. This case dealt with how one can change or amend a Notice of Compensation Payable (NCP) under the PA Workers’ Compensation Act. Yesterday, the Supreme Court issued a decision, affirming the decision of the Commonwealth Court of PA.

The Supreme Court decided that there are two types of changes one can make to a NCP: The change is either a “corrective amendment” (meaning the diagnosis or injury was one present when the work injury took place) or it is a “subsequently-arising” or “consequential” condition (something which happened after the date of injury, such as depression from chronic pain, Complex Regional Pain Syndrome (CRPS)/Reflex Sympathetic Dystrophy (RSD), fibromyalgia, overuse syndrome, just for examples).

A Workers’ Compensation Judge (WCJ) can order a change to the NCP in the “corrective amendment” situation, regardless of what type of litigation is pending. However, if the situation is one involving a subsequent or consequential condition, then the claimant must file a Petition to Review. This distinction drawn by the PA Supreme Court represents a change from what was believed to be existing law (Specifically, the cases of Jeanes Hospital v. Workers’ Compensation Appeal Board (Hess) and Commercial Credit Claims v. Workers’ Compensation Appeal Board (Lancaster), both previously decided by the Supreme Court of PA).

In either of these situations, if the claimant wishes to amend or change the Notice of Compensation Payable, the claimant has the burden of proof on the issue.

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Ordinarily, to suspend (or even modify) workers’ compensation benefits to an injured worker in PA, the workers’ compensation insurance carrier must show a change of medical condition and prove work is available within the injured worker’s physical capabilities [Benefits can be suspended for other reasons, but this is the most common].

There are exceptions to this rule, and one of those exceptions was the issue involved in Braz v. Workers’ Compensation Appeal Board (WCAB), decided recently by the Commonwealth Court of Pennsylvania.

Claimant decided to move to Portugal after his injury. Upon learning of this fact, the workers’ compensation insurance carrier filed a Petition to Suspend Compensation Benefits, since Claimant had “voluntarily removed himself from the labor market.” Because the workers’ comp insurance company presented no medical evidence, showing a change in medical condition, the Workers’ Compensation Judge (WCJ) denied the Petition. On appeal, the WCAB reversed the WCJ, and granted the Petition.

The Commonwealth Court of Pennsylvania affirmed the WCAB, finding that by permanently relocating out of the Country, Claimant elected to remove himself from the workforce. As such, the Court determined that Claimant was no longer entitled to workers’ comp benefits.

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To obtain workers’ compensation benefits in PA, the worker must be injured while in the scope and course of his or her employment. Fortunately, PA law does not require that a worker be chained to his or her desk, or work area, the entire day. Pennsylvania law recognizes that “small temporary departures” from work do not remove an employee from being in the scope and course of his or her employment. The degree of latitude given also varies depending on whether one is a “stationary” as opposed to a “traveling” employee.

Recently, the Commonwealth Court of Pennsylvania decided Department of Labor & Industry v. Workers’ Compensation Appeal Board (Savani), finding a stationary employee not in the scope and course of her employment when she fell and suffered a fractured arm while off the employer’s property on a paid break. The Court found that being off the employer’s property for personal reasons, even though on a paid break, was not “a small temporary departure from work” or an “inconsequential or innocent departure from work.”

These types of cases vary greatly, depending on the facts in each situation. This is why it is important to have your case reviewed by an experienced PA workers’ comp attorney.

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When a worker gets hurt at work in PA, the Pennsylvania Workers’ Compensation Act requires that the employer be notified of the injury with 120 days. If the injury is one of repetitive, or cumulative, nature, such as carpal tunnel syndrome or hearing loss, the 120-day period does not begin until the date the condition, and its relation to work, is known (called “the discovery rule”). This notice does not need to contain the exact diagnosis of the work injury, but merely “a reasonably precise description of the injury.”

In Gentex Corp. v. Workers’ Compensation Appeal Board (Morack), decided by the Commonwealth Court of Pennsylvania on June 4, 2009, the Court addressed what “sufficient” notice of an injury must contain.

Ms. Morack began having pain in her hands at work. At first, she was not aware it had anything to do with her job. She applied for short-term disability benefits on February 2, 2005, putting on the application that her disability was not work-related, and the condition was swelling in arms, hands, knees and ankles from fibromyalgia and high blood pressure.

Later in February, 2005, her doctor advised her that she had carpal tunnel syndrome, and it was related to her duties at work. Ms. Morack called her employer and left a message on voicemail that she had “work-related problems.” The next notice came to the employer in September, 2006, when they received a copy of the Claim Petition.

The Workers’ Compensation Judge (WCJ) found Ms. Morack credible and granted the Claim Petition. The WCJ found that Ms. Morack called the employer and gave notice within 120 days. The Workers’ Compensation Appeal Board (WCAB) affirmed.

On appeal to the Commonwealth Court, the employer had two arguments. First, the employer said Ms. Morack failed to prove the voicemail was left within 120 days (no time was stated for when the voicemail was left). Second, the employer alleged the notice given was not sufficient.

The Court disagreed on the first point, finding that, since Ms. Morack was found credible, and won before the WCJ, she is entitled to all reasonable inferences. Based on the evidence, there was no reason to believe the voicemail was left more than 120 days from the injury date.

On the second argument, however, the Court agreed with employer and reversed the decision of the WCJ. The Court found that simply telling the employer that she had “work-related problems” was not sufficient. While, in some situations, the short-term disability application may provide the missing detail, here, the application cited body parts and conditions not even alleged to be work-related, so it was of no help. In the end, Ms. Morack failed to provide any description at all of her alleged work injury. As such, the granting of the Claim Petition was reversed by the Court.

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In PA, when a workers’ compensation insurance carrier wants to challenge whether medical treatment is reasonable or necessary, the insurance carrier can request Utilization Review (UR). In such a case, the PA Bureau of Workers’ Compensation assigns the UR Request to a Utilization Review Organization (URO). The URO then obtains records from the provider under review, and a personal statement from the injured worker if he or she wishes, and a Utilization Review Determination is issued. This Determination can then be appealed by either party by filing a Petition to Review Utilization Review Determination.

However, if the healthcare provider under review fails to submit records, the regulations to the Pennsylvania Workers’ Compensation Act require the URO simply find treatment unreasonable and/or unnecessary, because records were not submitted. In this situation, no report is prepared by the URO, and no findings on the merits are made. Importantly, this type of Determination cannot be appealed under the County of Allegheny v. Workers’ Compensation Appeal Board case, decided by Commonwealth Court of Pennsylvania in 2005.

Recently, the Commonwealth Court of Pennsylvania has made things even worse for injured workers, by extending County of Allegheny. The case of Sexton v. Workers’ Compensation Appeal Board (WCAB) was decided by the Court on May 22, 2009. In Sexton, the provider submitted records to the URO, but forgot to submit a verification with the records. The URO returned the records to the provider, so the provider could resubmit the records with the required verification. Unfortunately, the provider never resubmitted the records or the verification.

The Workers’ Compensation Judge (WCJ) ordered a new UR be performed. The WCAB, though, reversed. This was affirmed by the Commonwealth Court of PA. The Court found that the verification was required to be submitted, to assure the records were true and correct. Since the verification (and the records) were never resubmitted, the URO could not generate a report and reach a Determination on the merits. As such, under County of Allegheny, the Determination could not be appealed by the injured worker.

I find County of Allegheny inconsistent with the terms, and the spirit, of the Pennsylvania Workers’ Compensation Act, which was intended to be humanitarian legislation, beneficial to the injured worker. Sexton then extends the harm even further. Records were actually submitted in Sexton. As the dissent by Judge Johnny J. Butler (former Secretary of the PA Department of Labor & Industry) observed, there was no authority in the Act for the URO to send the medical records back to the provider. Worse, even if medical records could not be used on appeal, what is the basis for precluding the injured worker from testifying as to the reasonableness and/or necessity of the treatment at issue? Under the Act, if the testimony of the injured worker was found credible, this could be the basis to grant a Petition to Review Utilization Review Determination. Under current law, however, the injured worker cannot even file the Petition to Review Utilization Review Determination when the provider fails to submit records.

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When a work injury is denied by the workers’ compensation insurance carrier in PA, the injured worker must file a Claim Petition with the Pennsylvania Bureau of Workers’ Compensation. The Claim Petition is then litigated before a Workers’ Compensation Judge (WCJ). To win a Claim Petition, usually the injured worker needs the WCJ to find both the injured worker, and his or her doctor, credible.

The testimony of the medical expert must be “unequivocal,” that the injured worker suffered a work-related injury, and has been disabled from work as a result of this injury. “Unequivocal” does not require 100% certainty (since nothing in life is 100% certain), but simply requires the doctor to believe that is the case.

A recent decision by the Commonwealth Court of Pennsylvania, Moyer v. Workers’ Compensation Appeal Board (WCAB), addressed this issue. The WCJ in this case found Claimant and his doctor credible and granted the Claim Petition. However, the WCAB reversed the WCJ, finding the testimony of Claimant’s doctor to be equivocal.

The Claimant had a past medical history of low back problems, before the work injury, and the WCAB felt the testimony of Claimant’s doctor was based only on the fact there was an increase in pain just after Claimant lifted a bucket at work. The opinion of a doctor is equivocal if it assumes an injury is work-related just because it happens right after an event at work. Similarly, an opinion is equivocal if the doctor can only say the work event “could have” caused the disability.

The Commonwealth Court of Pennsylvania reversed the WCAB, and granted the Claim Petition. The Court noted that one cannot take a single statement of a witness out of context; instead, one must examine the testimony as a whole. When looked at in this way, the Court found the testimony of Claimant’s doctor was based on the history given by Claimant (found credible by the WCJ), and observed a difference in Claimant’s condition before and after the event at work. The doctor did not merely say the event “could have” caused the aggravation of his low back condition, the doctor testified the event “was” the cause of the aggravation. Considering all of this, the opinion of Claimant’s doctor was unequivocal.

Cases like this highlight the importance of getting the right testimony from medical witnesses. If the attorney is not familiar with PA workers’ comp law, the testimony obtained may not be sufficient to win a Claim Petition.

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Typically, under the Pennsylvania Workers’ Compensation Act, the benefits of an injured worker are reduced based on any earnings the injured worker has after his or her injury. Specifically, the injured worker receives two-thirds of the difference between the pre-injury earnings and the post-injury earnings (up to a statutory maximum).

In a somewhat troubling decision issued by the Commonwealth Court of PA, Alessandro v. Workers’ Compensation Appeal Board, an injured workers’ benefits were ordered to be suspended, despite the workers’ comp insurance carrier having no evidence that post-injury earnings equaled pre-injury earnings. The Court, noting that the Workers’ Compensation Judge found the injured worker not credible, believed the burden to show earnings (and subsequent wage loss) rests with the injured worker, not the workers’ comp insurance carrier.

As an attorney who represents injured workers in Pennsylvania, I find this decision problematic. Mr. Alessandro testified that he worked some, but had a large wage loss. Since it appears he was paid in cash (meaning there are no written wage records), and Mr. Alessandro was found not credible, as a practical matter, it seems almost impossible for Mr. Alessandro to prove he has a wage loss. How can one prove an absence of earnings?

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Under Section 204(a) of the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance company in PA is entitled to an offset when an injured worker receives Social Security Retirement Benefits (SSR). This is one of the provisions in the Act that seems most unfair to us attorneys who represent injured workers in PA.

The Supreme Court of Utah recently declared a similar provision in that State’s workers’ compensation laws to be unconstitutional, as it discriminated against injured workers on the basis of their age. Only injured workers old enough to qualify for SSR would have their workers’ comp benefits reduced.

Since workers’ compensation laws vary widely from State to State, there is no direct impact of this decision on the laws in Pennsylvania. However, this law does give us hope that a similar result can eventually be accomplished in the Supreme Court of Pennsylvania.

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As discussed in previous blog entries, the case of Diehl v. Workers’ Compensation Appeal Board is of great importance in determining whether it matters when a workers’ compensation insurance carrier in Pennsylvania requests an Impairment Rating Evaluation (IRE) within 60 days of the expiration of 104 weeks of total disability.

In a decision rendered on April 28, 2008, the Commonwealth Court of Pennsylvania held that a PA workers’ compensation insurance carrier must show job availability if the IRE request is not made within that 60 day period. This decision was then vacated by the Court, to be addressed again by the entire Court (rather than a panel, as this decision was). Finally, on April 22, 2009, the Court issued a final decision in this matter, achieving a different result.

As feared by attorneys who represent injured workers in PA, the Court held that a workers’ compensation insurance carrier need not prove job availability whether or not the IRE request is made within that 60 day period. Instead, if that time period is missed, the workers’ comp insurance company merely has to prove the Impairment Rating Evaluation resulted in an impairment rating of less than 50%.

Unfortunately for injured workers in Pennsylvania, this means there is very little difference whether the workers’ comp insurance carrier requests the IRE within the 60 day period or not.

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One of the major changes in the Pennsylvania Workers’ Compensation Act, which was enacted in the 1996 amendments, is the creation of the Impairment Rating Evaluation (IRE). Under this concept, once an injured worker receives 104 weeks of temporary total disability benefits, the workers’ comp insurance company has the right to send the injured worker for an IRE. If the IRE results in a whole body impairment rating of less than 50% (which covers more than 98% of injured workers; this is an impossibly high standard), the status of workers’ compensation benefits can be changed from total to partial. This change in the status of benefits does not effect the rate of the weekly compensation, but how long such benefits can be received by an inured worker.

In PA, an injured worker can only receive a maximum of 500 weeks of partial disability benefits (there is no limit to the receipt of total disability benefits). Therefore, once the status of benefits is changed from total to partial, the receipt of benefits may be capped at 500 weeks.

If the IRE is requested within 60 days of the expiration of 104 weeks of total disability benefits, the change in status is automatic (the PA workers’ comp insurance carrier only has to file a Notice of Change of Status). On the other hand, if the request is not made within this window, the PA workers’ comp insurance carrier must file, and litigate, a Petition for Modification to have the status changed. In this situation, attorneys representing injured workers in PA have wondered whether the change in status takes effect on the date of the IRE or the date a Workers’ Compensation Judge (WCJ) decides the Modification Petition.

The Commonwealth Court of Pennsylvania recently answered this question in Ford Motor/Visteon Systems v. Workers Compensation Appeal Board (Gerlach). Unfortunately, the Court stated that the change in status is effective on the date the condition changed (the date of the IRE), rather than the later date the WCJ decides the Modification Petition. Given that litigation of a Modification Petition often lasts over a year, the injured worker is then left with far less than 500 weeks of benefits when the dust settles.

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Under the Pennsylvania Workers’ Compensation Act, an insurance carrier can stop paying benefits to an injured worker who is “incarcerated after a conviction.” The Commonwealth Court of Pennsylvania recently emphasized that there must be a conviction before workers’ compensation benefits can be suspended.

In Rogele Inc.v. Workers’ Compensation Appeal Board (Mattson), which the Court decided on April 2, 2009, the Workers’ Compensation Judge (WCJ) assessed penalties against the workers’ comp insurance carrier, after the carrier stopped paying benefits to the injured worker. In that case, the injured worker was in jail, in the process of pleading guilty to a felony which was to entail significant jail time. At the time benefits were stopped, however, there had been no conviction.

The Court affirmed the decision of the WCJ, finding that in PA, as anywhere in the United States, one is innocent until proven guilty. Whether one later pleads guilty is irrelevant. The plain language in the Pennsylvania Workers’ Compensation Act requires the claimant be “incarcerated after a conviction.”

The Court rejected the workers’ comp insurance carrier’s argument that the incarceration caused the injured worker to intentionally, or voluntarily, remove himself from the work force. Again, until there is a conviction, even if it results from a guilty plea, everyone is innocent.

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In Liveringhouse v. Workers’ Compensation Appeal Board, decided on March 19, 2009, the Commonwealth Court of Pennsylvania reversed the decision of a Workers’ Compensation Judge (WCJ), which denied claimant’s Petition to Review. In this case, the injured worker filed her Petition to Review to add carpal tunnel syndrome to her accepted PA work injury.

The WCJ denied that Claimant suffered from carpal tunnel syndrome at all. Since all three medical experts testified (two for the workers’ compensation insurance carrier) that Claimant did have carpal tunnel syndrome, the Court found that the decision of the WCJ was defective. “It is well settled that a WCJ is not competent to make independent medical determinations.” The WCJ also erroneously stated that the injured worker never testified that she had to twist using her pliers, when in fact the record showed such evidence. Still, the two doctors who testified for the workers’ compensation insurance carrier found that the carpal tunnel syndrome was not work-related.

One of those doctors based his opinion primarily on his belief that carpal tunnel syndrome “could be related to job duties only when the jobs involve the use of significant vibratory tools over long periods of time.” In what would normally seem to be a determination of credibility, made solely by a WCJ, the Court found this opinion completely defective. Specifically, the Court stated, “Courts consistently have regarded carpal tunnel syndrome as a condition that arises as a classic cumulative trauma or repetitive stress injury that may result from use of the hands in a variety of job settings, and they have never limited benefits for carpal tunnel to cases involving use of ‘significant vibratory tools’ over long periods.”

The other doctor testifying for the workers’ compensation insurance carrier refused to give an opinion regarding cumulative trauma or repetitive stress, saying he would only give opinions regarding an injury which may have occurred on a specific date. As such, the Court found the WCJ erred by using this testimony to counter other medical evidence that the work duties did lead to the carpal tunnel syndrome. Ultimately, the Court “vacated” the decision of the WCJ, and “remanded” the case back to the WCJ, for the WCJ to issue another decision, consistent with the proper legal standards.

Given the pronouncement of the Court that “carpal tunnel syndrome (is) a condition that arises as a classic cumulative trauma or repetitive stress injury that may result from use of the hands in a variety of job settings,” PA workers’ compensation insurance company doctors (“Independent Medical Examiners” or IMEs) may now have a more difficult time testifying that repetitive work duties cannot cause carpal tunnel syndrome. This is a victory for attorneys who represent injured workers in PA workers’ comp cases.

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Ordinarily in a Pennsylvania workers’ compensation case, litigation costs incurred by an injured worker (or his or her lawyer) are reimbursed by the PA workers‘ comp insurance carrier if the injured worker was successful “in whole or in part.” This is a very important concept; if claimant attorneys cannot get their litigation costs reimbursed, some meritorious workers’ comp cases will be declined, as the attorneys will not be able to afford litigating them.

A recent decision by the Commonwealth Court of Pennsylvania, Reyes v. Workers’ Compensation Appeal Board (WCAB), limits the injured worker’s attorney in recovering costs, despite being successful on a Claim Petition, at least in part.

In Reyes, the claimant was injured in a work-related motor vehicle accident. A Notice of Denial (NCD) was issued, which acknowledged the injury, but denied disability. The injured worker filed a Claim Petition. The Workers’ Compensation Judge (WCJ) granted the Claim Petition for a closed period of time, finding that the work injury fully resolved on the date on the Independent Medical Examination (IME). The WCJ denied an award of wage loss benefits, finding that claimant failed to prove he was ever disabled from work. Finally, the WCJ denied an award of litigation costs, saying that the claimant was not successful at all.

On appeal, both the WCAB and the Commonwealth Court agreed with the WCJ, and denied wage loss benefits to claimant and litigation costs to the attorney. Despite the fact that the workers’ comp insurance company issued a Notice of Denial, and the attorney for the workers’ comp insurance carrier filed an Answer to the Claim Petition denying all allegations, the Court found the issue to be decided by the WCJ to just involve the wage loss benefits. The workers’ comp insurance carrier acknowledged the injury and in the litigation was only disputing the wage loss benefits, the Court said. Since the injured worker was not successful on this issue, the litigation costs were properly denied.

As a practical issue, as attorneys representing injured workers in PA, we found this decision very disturbing. Essentially, the Court is finding a Notice of Denial to be a proper way for a workers’ comp insurance carrier to accept a medical claim. Silly us, we thought that was the entire purpose for the “medical only” Notice of Compensation Payable (which, by the way, was introduced by the Pennsylvania Bureau of Workers’ Compensation at the request of the PA insurance industry).

In reality, many of our clients have difficulty getting medical treatment if a claim is “accepted” by a Notice of Denial. Medical providers who are limited to the usual and customary English language (and are not fluent in Legalese) may not understand that “Denial” in this sense means exactly the opposite of what the dictionary suggests the word means. Also, too, is the question of what happens once the three-year Statute of Limitations expires. A Notice of Denial, is, by definition, a “denial” of the claim, despite what is written on the document. Is the medical aspect of the claim open at that point or not?

Frankly, use of the NCD to accept a claim is just plain wrong and should be eliminated. Since the Courts seem unwilling to do so, it may be time for the Pennsylvania legislature to step forward on the issue.

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Under the Pennsylvania Workers’ Compensation Act, an injured worker is generally covered for all of the effects of the work injury. Things that would not have happened “but for” the work injury often can be included in the workers’ compensation case. Thus, typically, if an injured worker in PA has a car accident on the way to therapy (for the work injury), the injuries suffered in the subsequent car accident are also covered by workers’ comp.

A recent decision by the Commonwealth Court of Pennsylvania, Matthews v. Workers’ Compensation Appeal Board (WCAB), however, restricts this concept. The injured worker must provide evidence of each aspect of his or her claim, as with any PA workers’ comp claim. Here, Ms. Matthews hurt her knee at work in January, 2003, then had a car accident, while going to therapy for her knee, in September, 2003. Medical evidence showed the January, 2003 injury had healed, but Claimant was disabled from the injuries from the car accident. The Workers’ Compensation Judge (WCJ) found that the work injury should be expanded to include the injuries from the car accident, and awarded ongoing workers’ comp benefits.

On appeal, the WCAB reversed the decision of the WCJ, finding the car accident could not be considered part of the work injury because Claimant never gave notice to her employer of the car accident (though she did notify her employer of the original work injury to her knee). The Commonwealth Court of PA agreed with the WCAB.

The dissent noted that Claimant presented evidence that she was treating with the same panel physician as was treating the initial work-related knee injury. As such, went the dissent, the employer DID have notice of the motor vehicle accident. For the majority, though, this was not deemed sufficient.

Essentially, they are treating the car accident as an “aggravation,” which, under PA workers’ comp law, is a “new injury.” As such, one of the elements an injured worker must prove is that he or she gave notice of the injury within 120 days. As an attorney representing injured workers in Pennsylvania, this decision does not seem fair. The car accident is not a new injury (Ms. Matthews did not go back to work, so how could she have a new injury?). The car accident, to me, is simply a continuation of the existing injury (no different than when we add another diagnosis to an existing claim).

This decision will serve no purpose other than to punish those injured workers who do not get timely legal advice from an experienced Pennsylvania workers’ compensation attorney. There really, to me, is no valid reason to require additional notice for what is truly a continuation of the same injury.

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What happens when an injured worker in Pennsylvania is released by his or her doctor to return to work, without restriction, but the injured worker has no job waiting for him or her? Recently, the Commonwealth Court of PA answered this question and put a smile on the face of this PA workers’ comp attorney.

In Consol PA Coal Co. v. Workers' Compensation Appeal Board, the injured worker broke his arm. His treating orthopedic surgeon eventually released him to return to work, without restriction. Rather than offer him a job, the Employer instead filed a Petition to Suspend his workers’ compensation benefits. Employer took the position that if the injured worker had no physical limitations, the loss in wages could not possibly be due to the work injury.

The Commonwealth Court disagreed with the Employer (as had the Workers’ Compensation Judge and the WCAB below), holding that to win a Petition for Suspension, an Employer must prove a job was actually available to the injured worker. Without this evidence, the Employer could not prevail.

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Section 204(a) of the Pennsylvania Workers’ Compensation Act entitles workers’ comp insurance carriers to an offset if the injured worker receives unemployment compensation benefits, Social Security Retirement benefits, severance benefits or pension benefits. Most of these benefits, and their offsets, are easily calculated. However, when one gets into the area of pensions, in particular “defined benefit” plans, things get more complicated.

In a “defined benefit” plan, the amount of money paid to the recipient is certain; therefore, the party funding the plan takes the risk of the plan not being adequately funded to make the necessary payments to recipients. The money paid into the plan is put into a general fund, which is then used to pay all recipients. Contrast this with a “defined contribution” plan, where the employer pays a certain amount on behalf of each employee, and that account is then used to only pay that employee. That employee then only receives the payments that his own account can support. Thus, the employee takes the risk of underfunding.

A Pennsylvania workers’ comp insurance company can only obtain an offset from a pension plan “to the extent funded by the employer directly liable for the payment of compensation.” The issue, then, becomes how much that employer funded the plan. This can get complicated in a “defined benefit” plan, where the injured worker was employed by multiple employers over his or her career.

On March 5, 2009, the Commonwealth Court of Pennsylvania decided Consolidated Coal Co. v. Workers’ Compensation Appeal Board, and addressed this very issue. In this matter, the injured worker was entitled to a “defined benefit” disability pension, as a result of working just over 31 years for various union employers. He worked over 13 years for the employer at which he was injured. Due to Claimant’s higher benefit rate while working for this employer, the actuary of the plan testified that 51.12% of the total monthly benefits from the plan were attributable to this employer. Thus, the workers’ compensation carrier wanted an offset of 51.12%.

The Commonwealth Court agreed with employer. Even though the actuary of the plan did not testify as to what amount of money the employer contributed to the plan (versus the amount the employee was paid out of the plan), the Court found the method used appropriate for “defined benefit” plans. Since the contributions go into a general fund, and not into an account for each individual employee, as with a “defined contribution” plan, this service-based method is appropriate to calculate the offset.

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As you may recall, in a recent blog entry, we mentioned the case of PGW v. Workers’ Compensation Appeal Board (Amodei). This was the case where the Commonwealth Court of Pennsylvania stated, unequivocally, that credit against pension benefits in PA workers’ comp is to be done on the net amount of the benefit, rather than the gross.

It has now come to our attention that the workers’ compensation insurance carrier in this case has filed a Petition for Allocatur with the Supreme Court of Pennsylvania, asking the State‘s highest Court to accept an appeal in this matter.

As always, we will keep everyone posted on developments in this, and any other, PA workers’ comp matter. We also want to remind folks that we are happy to answer questions regarding any Pennsylvania workers’ compensation issues. You can contact us by telephone or e-mail, through our firm website.

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Ordinarily, when an injured worker in Pennsylvania has his or her workers’ compensation benefits modified or suspended, such as by a return to work, having the benefits reinstated to total disability is not difficult provided that the loss of such work is not due to the fault of the injured worker, and the work-related disability continues.

The situation is much different, however, when the injured worker’s PA workers’ comp benefits are modified or suspended due to “bad faith conduct.” As explained by the Commonwealth Court of Pennsylvania in a recent case, Ward v. Workers’ Compensation Appeal Board (WCAB), decided on March 2, 2009, if the injured worker’s benefits were modified due to bad faith, then the injured worker has the burden to prove his or her medical condition worsened such that he or she is no longer capable of performing the job which had previously been found to be available.

The claimant in Ward was injured in 1992. In 1999, the PA workers’ comp insurance company was successful in litigating a Petition to Modify benefits. Specifically, the Workers’ Compensation Judge (WCJ) found that jobs were available to claimant, within his physical restrictions, but that he did not apply for the jobs. The WCJ ordered the total disability benefits modified to “partial disability benefits.”

In 2006, the claimant filed a Petition to Reinstate his total disability benefits. This Petition failed, because no medical expert testified that claimant’s condition had changed such that he was no longer capable of performing the job the WCJ found to be available to claimant back in 1999. Had claimant returned to work, rather than having this “bad faith” finding against him, reinstatement may have been considerably easier.

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As an attorney representing injured workers in Pennsylvania, I find “no work” jobs to be one of the nastier and more insulting actions an employer can take. Like they sound, “no work” jobs are positions offered to injured workers by their pre-injury employers, where the injured worker is to sit at a desk and literally do nothing. One of the favorite tricks of nasty employers is to offer such a job, wait for the employee to fall asleep, then fire the employee for sleeping on the job.

Though Courts in PA have held that “no work” jobs are “real” jobs, and have suspended workers’ comp benefits to injured workers who refuse such jobs without reason, a recent case shows the PA Courts do recognize limits to such actions. In Channellock, Inc. v. Workers’ Compensation Appeal Board (Reynolds), the Commonwealth Court of Pennsylvania held that a “no work” job was not within the injured worker’s physical capabilities.

The injured worker was taking medications which made him drowsy. A Workers’ Compensation Judge found both the injured worker, and his doctor, credible on this point. The injured worker tried the “no work” job and fell asleep. The worker was threatened with termination if this happened again. The Court found that proved that the job required that Claimant stay awake and that the credible evidence showed Claimant cannot stay awake due to his medication. As such, the job was not available to the injured worker and workers’ comp benefits were to continue.

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The last major changes to the Pennsylvania Workers’ Compensation Act came in 1996. Among other things, workers’ comp insurance carriers were given a credit for some other benefits an injured worker might receive, such as unemployment compensation, severance benefits, Social Security Retirement benefits and pension benefits [Section 204(a) of the PA Workers’ Compensation Act]. These offsets were designed to avoid an injured worker receiving a “double” recovery.

As attorneys representing injured workers, we were disappointed when two cases were decided by the Commonwealth Court of PA, holding that these offsets were to be taken on the gross (before tax) amount of these benefits, rather than on the net amount. In fairness, if the injured worker is paying part of his benefits back for tax, he or she did not actually “receive” the entire benefit being offset. Indeed, then the injured worker in PA, in effect, is getting less in workers’ comp benefits than the amount the Pennsylvania legislature intended.

This issue was even more disturbing, and perplexing, when the Pennsylvania Bureau of Workers’ Compensation issued regulations, stating that the offsets under Section 204(a) should be on the net amount. These regulations were issued just before the first of the above-mentioned two cases, though neither case mentioned the regulations.

The good news is that the Commonwealth Court of PA decided the case of Philadelphia Gas Works v. Workers’ Compensation Appeal Board (Amodei) on February 4, 2009, finding that the offset for pension benefits is to be taken on the net amount. Though the previous two cases dealt with a different benefit (unemployment compensation in one, severance in the other), the Court seemed to treat all Section 204(a) offsets consistently. The Court, this time, looked at the regulation and gave the regulation full force and effect. Though the Court did not specifically overrule the previous two cases (as a three-Judge concurring opinion would have done), these previous cases would not seem to have much current effect.

Note, also, that the regulations additionally provide that if a gross credit is taken on a Section 204(a) offset, the injured worker can apply to the workers’ comp insurance carrier to be paid back the amount that was taxed (when the amount paid in tax is known).

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As mentioned in a previous blog post, Pennsylvania Courts have become increasingly strict with regard to cutting off PA workers' compensation benefits to retired injured workers, even when the retirement is due to the work injury.

Those of us who represent injured workers' in PA workers' comp were surprised and excited when the Supreme Court of Pennsylvania issued a terse, one paragraph, Order in the case of Gray v. Workers' Compensation Appeal Board (WCAB), reversing Commonwealth Court of PA, the WCAB and the Workers' Compensation Judge (WCJ), and demanding that the claimant's workers' comp benefits be reinstated, "in light of the competent, uncontroverted evidence presented by Petitioner that her retirement from the work force was involuntary, and her increased, debilitating shoulder pain prevented her from continuing to work." We can only hope that the very strict punishment for retired injured workers in PA is lessening. As always, we will keep you updated on developments in this area.

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As a Claimant’s lawyer, practicing exclusively in PA workers’ comp, I was thrilled when the Supreme Court of Pennsylvania decided Lewis v. Workers’ Compensation Appeal Board (WCAB) in 2007. The Court in Lewis limited a PA workers’ comp insurance company’s ability to continually file petitions to terminate a claimant’s workers’ comp benefits. Specifically, the Court held that a workers’ compensation insurance carrier in PA had to prove there was an actual change in condition from the previous adjudication of disability (again, for this case to be important, the injured worker had to have previously defended a Termination Petition).

There was some concern, however, with how the Commonwealth Court of Pennsylvania would interpret the Lewis decision. As we posted in a previous blog entry, the Commonwealth Court initially did properly follow Lewis. Last month, the Commonwealth Court of Pennsylvania set claimant’s workers’ comp attorneys’ minds at ease, when they issued a decision in Delaware County v. Workers’ Compensation Appeal Board. Here, like in Lewis, the workers’ comp insurance company lost a Termination Petition, then filed another Termination Petition. Finding the workers’ compensation insurance carrier’s doctor credible when he testified the injured worker had fully recovered from the work-related injury, the Workers’ Compensation Judge (WCJ) granted the Termination Petition.

On appeal, the Commonwealth Court of PA, vacated the termination and remanded to the WCJ (sent the case back to the WCJ for additional findings). The Court found that the WCJ had granted the Termination Petition in error, because it was not enough to simply find the workers’ compensation insurance carrier’s doctor was credible when he testified that the injured worker had fully recovered from her work injury. Instead, the Court said the WCJ must first decide whether the workers’ comp insurance company proved that the claimant’s condition had changed from the time of the first Termination Petition to the time of the second. Only after that finding is made can the WCJ decide whether the workers’ compensation insurer proved the injured worker had fully recovered.

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Generally speaking, an injured worker in PA can ask a Workers’ Compensation Judge (WCJ) to review an accepted description of a work injury “at any time” (within the statute of limitations, of course) to amend those conditions for which the workers’ compensation insurance carrier should be responsible. In other words, usually, an injured worker, under the Pennsylvania Workers’ Compensation Act, can try to add more injuries to an accepted workers’ compensation case.

However, a recent decision by the Commonwealth Court of Pennsylvania put a significant hurdle in the path of an injured worker. On November 25, 2008, the Court decided Wenley v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.).

In this case, the workers’ comp insurance company accepted a “left shoulder strain.” The injured worker filed a Petition to Review, to add a tear of the anterior labrum with large glenohumeral joint effusion, tendonitis or a partial tear of the supraspinatus/infraspinatus, minimal impingement, and biceps tenosynovitis, all in the left shoulder. The workers’ compensation insurance carrier agreed, and the parties executed a stipulation, providing that the work injury now included this more descriptive injury.

Mr. Wenley then filed another Petition to Review, this time to add herniated discs in his cervical spine to the work injury. Since the records showed that Mr. Wenley had neck problems at the time he was litigating the first Review Petition, the Court held that he was barred from litigating this second Review Petition.

This concept is called “technical res judicata” or “claim preclusion.” It happens when an identical issue, between identical parties, has already been decided. The troubling aspect of this case for us, as attorneys representing the injured worker, is that the neck problem was never litigated, or decided, in the first Review Petition. And, frankly, there was no reason to address the neck at that point, since the workers’ comp insurance carrier was agreeing to the left shoulder problem, and that problem was the immediate concern of Mr. Wenley at that time.

The Court took pains to observe that technical res judicata applies to those claims actually litigated, as well as those that should have been litigated. This is a dangerous precedent, as it may mean that when we file a Petition to Review for a client, we may have to litigate every single condition which may be related to the work injury, or risk being barred from doing so in later litigation. Ultimately, it seems this will increase the complexity of litigating a Review Petition, which will just cause more of a strain on the workers’ compensation judicial system.

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Under the Pennsylvania Workers’ Compensation Act, physical injuries, like carpal tunnel syndrome, low back strain or a fractured arm, are treated differently than emotional/psychological injuries, like post-traumatic stress disorder (PTSD), depression or anxiety. To obtain workers’ comp benefits in PA for emotional/psychological injuries, the injury must result from an “abnormal working condition,” rather than a person’s subjective response to a normal working condition. What constitutes an “abnormal working condition” under Pennsylvania workers’ comp law varies depending on the job at issue and is the subject of many court decisions.

Recently, the courts in PA have been very demanding in what constitutes an “abnormal working condition.” For some professions, such as firemen, policemen and other emergency first responders, the courts have set the threshold extremely high, finding very little in those jobs could possibly be “abnormal.” Essentially, some jobs should expect the unexpected, the courts seem to say.

Typically, harassment or bad behavior by a boss will not reach the level of an “abnormal working condition.” In fact, one of my favorite quotes on this subject comes from a 1996 decision of the Supreme Court of Pennsylvania, “In assessing whether work conditions are abnormal, we must recognize that the work environment is a microcosm of society. It is not a shelter from rude behavior, obscene language, incivility, or stress.”

With this in mind, a recent decision by the Commonwealth Court of Pennsylvania, Community Empowerment Association v. Workers’ Compensation Appeal Board (Porch), decided November 25, 2008, was a pleasant surprise. In this case, the Claimant was a victim of both sexual and religious harassment, and suffered emotional and psychological injury as a result. A Claim Petition was filed, and was subsequently granted by a Workers’ Compensation Judge (WCJ). On appeal, the Court found these facts sufficient to rise to the level of an “abnormal working condition.”

While emotional and psychological injuries sometimes have a more difficult burden of proof than a typical physical injury under PA workers’ compensation law, an injured worker should be aware that such claims can still sometimes be successful. As with any work injury, it is critical to consult immediately with an attorney experienced in Pennsylvania workers’ compensation.

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Though the case of Armstrong v. Workers’ Compensation Appeal Board was decided by the Commonwealth Court of Pennsylvania over a year ago, on August 27, 2007, this decision continues to both amaze and irritate those of us who limit our practice to representing the injured worker in PA workers’ comp cases.

Under Section 406.1 of the Pennsylvania Workers’ Compensation Act, the workers’ comp insurance carrier has 21 days to accept or deny a claim. Typically, and logically, acceptance of a claim is done by issuing a Notice of Compensation Payable (NCP) [or an Agreement for Compensation], and denial of a claim is done by issuing a Notice of Denial (NCD). Since this seems to make perfect sense, naturally, this is not necessarily how things work.

On a Notice of Denial, there are six boxes, or “bases of denial.” Essentially, the workers’ comp insurance company checks one or more of those boxes, indicating the reason or reasons for the denial. Box number four on an NCD states, “Although an injury took place, the employee is not disabled as a result of this injury within the meaning of the Pennsylvania Workers’ Compensation Act.” This is rather unnecessary, since there is also a “medical only” NCP, to be issued when the workers’ comp insurance carrier feels there is no disability from the work injury.

In Armstrong, an NCD was issued, and box number four was checked. One of the issues the Court faced was whether the Notice of Denial was actually a document accepting the case. In a decision that seems contrary to common sense, the Court held that a Notice of Denial, with box four checked, does indeed mean that the workers’ compensation insurance carrier accepted the claim. Logic only an appellate court could love.

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Under the Pennsylvania Workers’ Compensation Act, an injured worker must give notice of his or her injury within 120 days of the injury. If this notice is not given within 120 days, a claim petition for workers’ comp benefits is barred.

When an injury is not known to be related to work, this time period may be extended. This is known as a “discovery rule.” In that case, notice must be given within 120 days of when the injured worker knows he or she has suffered a work injury.

A recent decision by the Commonwealth Court of PA, The Bullen Companies v. Workers’ Compensation Appeal Board (Hausmann), explored this issue. In this case, the injured worker was employed at a chemical plant for 17 years. The worker started getting treatment for kidney ailments in 2002, but did not notify his employer of a work injury until 2004, which the employer said was more than 120 days after the “injury” was suffered.

The Workers’ Compensation Judge (WCJ) found for the Claimant, and granted the Claim Petition. The Workers’ Compensation Appeal Board (WCAB) affirmed. The Commonwealth Court of PA also affirmed.

Importantly, the Commonwealth Court of PA, citing language from a decision of the Supreme Court of Pennsylvania, stating that the, “discovery rule ‘calls for more than an employee’s suspicion, intuition or belief; by its terms, the statute’s notice period is triggered only by an employee’s knowledge that she is injured and that her injury is possibly related to her job.’” Therefore, the 120 day period within which to give notice did not start until the injured worker was advised by a doctor that she had a work-related injury.

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As we explained in a recent blog entry, under the Pennsylvania Workers Compensation Act, Section 440(a) to be exact, reasonable attorney fees are to be paid by the PA workers’ compensation insurance carrier, unless the workers’ comp insurance carrier proves it had a reasonable basis to contest the claim. By design, this was to be the rule; the exception would be when attorney fees were charged to the injured worker.

Unfortunately, this is not how things work in practice. In Costa v. Workers’ Compensation Appeal Board (Carlisle Corp.), decided by the Commonwealth Court of Pennsylvania on October 14, 2008, the workers’ comp insurance carrier was found to have a reasonable basis to contest a claim when their own doctor agreed a work injury had taken place.

How could the Court accomplish such a feat, you ask? Well, the workers’ compensation insurance carrier’s doctor felt the injured worker had suffered a neck strain, while the injured worker’s doctor felt he had herniated a disc in the cervical spine (this would help explain why the injured worker had neck surgery after the work injury). Thus, the Court felt that because the parties’ medical experts disagreed what diagnoses were related to the work injury, the workers’ comp insurance carrier had a reasonable basis to contest the injury.

From our position, as lawyers who represent injured workers in PA, the decision by the Court seems completely unfair. There was no dispute a work injury took place, yet the Court says the fact that the claim was entirely denied was “reasonable.” This, unfortunately, sends a bad message to employers and workers’ compensation insurance companies in Pennsylvania, stating loud and clear that denial of claims can generally be done without any cost or retribution to the employer or the workers’ comp insurance carrier. Is this the message we want sent while injured workers lie in the hospital beds, unable to work, without any income?

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Under the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance carrier has 21 days to accept or deny a claim. During that period, the workers’ comp insurance carrier is to investigate the claim. This both fair and clear.

The award of attorney fees under the PA Workers’ Compensation Act is supposed to be the rule. Only when the workers’ comp insurance carrier demonstrates that the they had a reasonable basis to deny the claim is an award of fees to be denied. This is how the law sets forth the process. Again, this seems both fair and clear.

Unfortunately, the reality is that unreasonable contest attorney fees are rarely ordered against the workers’ compensation insurance carrier. Even though the PA Workers’ Compensation Act, and the cases from PA Courts, show the workers’ comp insurance carrier must have a basis to deny a claim at the time the decision is made to deny the claim, Workers’ Compensation Judges (WCJs) rarely apply the law this way.

On September 26, 2008, the Commonwealth Court of Pennsylvania decided Hansen v. Workers’ Compensation Appeal Board, in which unreasonable contest attorney fees were denied. In this case, at the time the decision was made to deny the claim, the workers’ comp insurance carrier had five progress notes from the injured worker’s doctor. One of these notes made mention of the injured worker’s occupation, in discussing her carpal tunnel syndrome. None of the notes specifically stated the carpal tunnel was work-related. The workers’ comp insurance carrier denied the claim. The WCJ granted the claim, but denied unreasonable contest attorney fees. The injured worker appealed the denial of attorney fees.

On appeal to the Commonwealth Court, the decision of the WCJ, denying the unreasonable contest attorney fees was affirmed. The Court reasoned that the workers’ comp insurance carrier had a factual basis to deny the claim since the progress notes were vague, and the injured worker had performed similar work for other employers in the past. The Court apparently had no problem with the fact that the workers’ comp insurance carrier did not request the injured worker attend an Independent Medical Examination (IME) until after a lawyer was retained and litigation was begun.

To us, as lawyers who regularly practice in the area of PA workers’ comp, the Court has now switched the burden to the injured worker to show clear evidence of a work injury to the workers’ comp insurance carrier. Previously, based on the actual language of the Pennsylvania Workers’ Compensation Act, we believed the workers’ comp insurance carrier had a duty to investigate an injury once report of the injury had been received (since this is what the Act specifically states in Section 406.1). It now appears the workers’ compensation insurance carrier has much less of a duty to investigate report of a work injury than is written in the Act.

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In Erisco Industries, Inc. v. Workers’ Compensation Appeal Board (Luvine), decided by the Commonwealth Court of Pennsylvania on September 3, 2008, an employer unsuccessfully tried to defend a Claim Petition by saying Claimant failed a drug test and that the drug use led to the work injury. Under the PA Workers’ Compensation Act, intoxication of the injured worker can be an “affirmative defense” by the workers’ compensation insurance company. This means that the burden is on the workers’ comp insurance carrier to prove not only that the injured worker was intoxicated (by drug or alcohol), but that the intoxication caused the injury.

When Mr. Luvine filed his Claim Petition, the workers’ compensation insurance company tried to submit the results of a drug test that they alleged was positive for an illegal substance. Part of the evidence required by the workers’ comp insurance company is to show “chain of custody” regarding the drug test; basically, they must show the sample was properly collected, authenticated and controlled throughout the testing process. This is primarily applicable when the laboratory which tests the sample is not the party who obtained the sample. The Workers’ Compensation Judge (WCJ) rejected the drug test results because the workers’ compensation insurance carrier failed to prove chain of custody, and the WCJ granted the Claim Petition.

Eventually, Mr. Luvine was released back to work, but his employer refused to offer him a job, since he had (in their eyes) failed the drug test. The workers’ comp insurance carrier filed a Petition to Suspend the workers’ compensation benefits, because they said the reason the injured worker was having wage loss now was that he failed a drug test (and no longer was due to the work injury).

The WCJ granted the Suspension Petition. The Workers’ Compensation Appeal Board (WCAB), however, reversed the decision of the WCJ, because the issue about the drug test had already been decided in the initial Claim Petition. The drug test could no longer be used. When an identical issue, between identical parties, is decided once, it cannot be litigated again. This is known as res judicata or collateral estoppel. The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB. The workers’ compensation insurance company had its chance to show the drug test was valid and failed. They cannot come back in another litigation and try the issue again.

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One of the most difficult burdens an injured worker in Pennsylvania faces is when he or she is trying to reinstate PA workers’ compensation benefits after a Workers’ Compensation Judge (WCJ) has terminated such benefits. Since the granting of a Termination Petition means that the WCJ has found the claimant fully recovered from the work injury, there is a logical problem to later show the same injured has “recurred.”

A recent decision by the Commonwealth Court of Pennsylvania, National Fiberstock Corp. v. Workers’ Compensation Appeal Board (Grahl), shed some light on the actual burden a claimant faces in this situation. In short, the claimant must prove that, after the date the WCJ found there was a full recovery, there was a change (a worsening) of that physical condition. A previous workers’ comp decision by the Court noted that this change must be proven “by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based.”

Obviously, this is a very difficult burden for the injured worker to reach. But, as the Grahl decision shows, the burden is hardly impossible. In the Grahl case, the injured worker won her case by proving her carpal tunnel syndrome had recurred, using the doctor’s physical examination (which showed atrophy, or shrinking of the muscle) and electrodiagnostic testing (EMG test). It is this type of objective proof of the change in her condition which won the case.

One of the arguments made by the workers’ comp insurance company was that Ms. Grahl’s doctor was not capable of testifying, because he did not see her until after the Termination Petition was granted by the WCJ (so he could not have known her condition at that time). The Court rejected this argument, since the doctor accepted and assumed that claimant was fully recovered when so found by the WCJ.

It is also important to note that this difficult burden flies both ways, as the Court also observed. When a workers’ comp insurance carrier loses a Termination Petition, the workers’ comp insurance company must prove a change in condition to win a later Termination petition. For more on this burden on the workers’ comp insurance carrier, see Lewis v. Workers’ Compensation Appeal Board (Giles & Ransome, Inc.)

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Posted In: Case Law Update , Workers Comp Appeals , Workers Compensation Litigation

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Under the PA Workers’ Comp Act, generally speaking, a worker is not eligible for Pennsylvania workers’ compensation benefits when he or she is commuting to work. Under the law, the worker is not “in the scope of employment” at that time. One exception to this rule is for “traveling employees,” who are usually in the scope and course of their employment while moving from place to place. Obviously, it is advantageous for an injured worker who is hurt commuting to work to be found to be a “traveling employee.”

In a recent case, Jamison v. WCAB (Gallagher Home Health), the Commonwealth Court of Pennsylvania held that a home health nurse, who was hurt commuting to her assignment, was a traveling employee, despite the fact she worked for three different employers (sometimes all on the same day). The Workers’ Compensation Judge (WCJ) had found that Claimant was not a traveling employee, because she could be working for any of her three employers on any given day. As such, the WCJ denied the Claim Petition.

In reversing the WCJ, the Court found that claimant was a traveling employee with regard to her home health nurse job (the issue of multiple employers was essentially irrelevant). Once found to be a traveling employee, claimant was entitled to a presumption that she was working for her employer at the time she was driving from her home to the patient’s house. To prevail and defeat the claim, the workers’ compensation insurance company would have to prove the claimant abandoned her duties for the employer (for instance, by proving that claimant was actually on her way to work at one of her other jobs). Since the workers’ comp insurance carrier failed to prove this, the WCJ erred in denying workers’ compensation benefits to claimant.

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Posted In: Case Law Update , Worker Comp Generally

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Under the most recent amendments to the Pennsylvania Workers’ Compensation Act, passed in 1996, once an injured worker in PA has received total disability benefits for 104 weeks, the workers’ comp insurance company can obtain an Impairment Rating Evaluation (IRE). If the work-related injury results in a whole body impairment rating of less than 50% (as almost all injuries do – this is an impossibly high standard), the PA Workers’ Compensation Act says the injured worker is changed from “total” disability status to “partial” disability status.

While this change from total to partial disability status does not change the amount of workers’ compensation benefits the injured worker receives, it does start the clock running regarding how long the benefits can be received. Partial disability benefits in PA are payable for a maximum of 500 weeks.

I go through this background, so that you understand the significance of a recent case decided by the Commonwealth Court of Pennsylvania, Combine v. WCAB (National Fuel Gas Dist. Co.). In this case, the Court held that a PA workers’ compensation insurance company cannot get an impairment rating until the IRE doctor first determines that a claimant has reached “maximal medical improvement” (MMI). Any obstacle in the path of the insurance carrier is certainly a benefit to claimants.

According to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which are used in Pennsylvania to determine impairment ratings in workers’ comp:

“MMI represents a point in time in the recovery process after an injury when further formal medical or surgical intervention cannot be expected to improve the underlying impairment. Therefore, MMI is not predicated on the elimination of symptoms and/or subjective complaints. Also, MMI can be determined if recovery has reached the stage where symptoms can be expected to remain stable with the passage of time, or can be managed with palliative measures that do not alter the underlying impairment substantially, within medical probability…”

When an injured worker has been out of work for 104 weeks, or when an IRE is sought by the workers’ comp insurance company, it is important for the injured worker to discuss his or her specific case with an experienced PA workers’ comp attorney.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update

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A recent decision by the Commonwealth Court of Pennsylvania, Albert Einstein Healthcare v. W.C.A.B. (Stanford), held that an injured worker seeking Pennsylvania workers’ compensation benefits must present expert medical evidence to prove disability. The testimony of the injured worker alone, unless the injury and the disability are obviously connected, will not be enough.

In this case, the claimant testified that she stopped working, due to the work injury, on October 21, 2002. The medical expert who testified in the workers’ comp case on her behalf did not see her until December 17, 2003. The Workers’ Compensation Judge (WCJ) found the testimony of claimant and her doctor both credible, but found that workers’ compensation benefits could not be awarded until December 17, 2003, as there was no competent medical evidence of her disability until that date (when she was seen by the doctor).

On appeal, the Pennsylvania Workers’ Compensation Appeal Board (WCAB) modified that portion of the decision of the WCJ and ordered that PA workers’ comp benefits should start as of October 21, 2002, based on the credible testimony of the claimant.

The Commonwealth Court of Pennsylvania then reversed the WCAB, reinstating the original decision of the WCJ – PA workers’ compensation benefits could not start before December 17, 2003. The Court said that the connection between the injury and the disability was not obvious (and this would certainly vary from case to case, depending on the circumstances in any particular case), and that, therefore, competent medical evidence was required. The only medical evidence in the case was the deposition of claimant’s medical expert, who did not see claimant until she had already been out of work for over a year.

This case highlights the importance of having an attorney who is familiar with all the quirks and nuances of the Pennsylvania Workers’ Compensation Act. This set of laws is quite tricky for any attorney who does not practice in the area of PA workers’ comp on a frequent basis. This is exactly the reason that we at Brilliant & Neiman LLC limit our practice to only handling Pennsylvania workers’ compensation matters.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Workers Comp Appeals , Workers Compensation Litigation

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Under the PA Workers’ Compensation Act, an injured worker must give his or her employer notice of the injury within 120 days of the injury. If notice is not given within 120 days of the work injury, a workers’ comp claim for the injury will be barred. This issue becomes somewhat more complicated when the injury is one which occurs over a period of years, such as a noise-induced hearing loss.

A recent case decided by the Commonwealth Court of Pennsylvania, Crompton Corp. v. W.C.A.B. (King), found that the requirement of giving notice is triggered only when an injured worker is told by a doctor that he or she has suffered a loss of hearing as a result of exposure to noise at work. Until an injured worker is advised of this, there is no requirement that notice be given. The fact the injured employee may suspect, or even believe, that he has a work-related hearing loss is not enough to trigger the start of the 120 day notice period.

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Posted In: Case Law Update

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Many times in Pennsylvania workers’ comp cases we see an injured worker devastated by a physical injury. Once a provider for his or her family, the injured worker may find themselves home, unable to work, do any chores around the house or take part in hobbies or pleasurable activities. Frequently, this can lead to emotional strain in the household. This dramatic change in an injured worker’s life often leads to psychological symptoms, such as depression and anxiety. When the depression and anxiety results from a work-related injury, in PA, the new psychological condition can be added to the workers’ compensation case.

While case law has changed over the years, as to how long an injured worker has to add more injuries or diagnoses to a workers’ compensation case in Pennsylvania, a recent case from the Commonwealth Court of Pennsylvania has confirmed that a workers’ comp claimant in PA can file a Petition to add a psychological condition to an accepted physical injury any time within three years of the latest payment of PA workers’ compensation benefits.

Though the claimant in this recent case, Campbell v. WCAB (Pittsburgh Post Gazette), ultimately lost in his attempt to add a psychological injury to his accepted physical injury, the Court disagreed with the Workers’ Compensation Judge that the claimant waited too long to file his Petition. The Court concluded that the Workers’ Compensation Judge was wrong about the statute of limitations, but the Workers’ Compensation Judge also found the medical evidence submitted by claimant not credible, so claimant still lost.

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Posted In: Case Law Update

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Ordinarily, an injured worker in Pennsylvania cannot receive both workers’ compensation total disability benefits and also wages. Generally speaking, if an injured worker in PA has returned to work, he or she is no longer, by definition, “totally disabled.” The injured worker may be entitled to partial workers’ compensation benefits (if a loss in earnings continues), but would not be entitled to total disability benefits.

A rare exception to this rule was recently addressed by the Commonwealth Court of Pennsylvania on July 22, 2008, when the